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Reminder that applications for Phoenix -Yuma-Flagstaff Panels must be received by our Phoenix office no later than the close of business on July 3rd

The two below linked District Court opinions were discussed as part of the March 14, 2014 CLE on “How to Ethically Seek the Just Drug Sentence.” Both are good examples of judicial reaction to the charging decisions and sentencing requirements of mandatory minimum sentences. And they are particularly critical of the filing of 21 U.S.C. § 851 informations that allege prior drug convictions. In each, the judge writes in an attempt to influence prosecutors not to abuse their powers and to applaud recent positive steps by Attorney General Holder, but to urge him to go further to curb such abuses and the gross disparity and unfairness of mandatory minimum sentences. Judge Gleeson in Kupa gives examples of what some judges have done to get around mandatory minimum sentences to deal with abuses and unfair sentences, and directly encourages Holder to take additional steps to make his new policies more resistant to abuse and to right past wrongs in individual cases. Judge Bennett in Young writes that the judiciary has an “ongoing obligation” to put pressure on DOJ and line prosecutors to do more. And he “call[]s on [his] colleagues on the federal bench” to do the same. Both are good cases to use to enlist judges to take affirmative action to ensure unfair sentences are not imposed in an individual case and to undo the unfair sentencing practices that have resulted from the failed war on drugs.J.Gleeson in Kupa re DOJ 851 abuse.pdf J.Bennett in USvYoung re DOJ-851-abuse.pdf

Special discount
on the price of CaseMap/TimeMap software bundleInformation

The National Litigation Support Team (NLST) is excited to announce the launch of their blog which can be found at: http://nlsblog.org.

The National Litigation Support Team (NLST) (see http://www.fd.org/odstb_LitigationSupport.htm ) is available for FDO staff and CJA panel attorneys to serve as a resource for litigation support aspects of their cases. The team has worked with the CJA community over the last two years to develop a set of national litigation support strategies, among them the use of Coordinating Discovery Attorneys (CDA). The Judicial Conference Committee on Defender Services has approved the use of a CDA in certain federal CJA cases. With the growth of multiparty, complex cases involving large volumes of discovery in a variety of formats, CDAs facilitate the extraordinary degree of coordination needed between the government and defense counsel, among defense counsel, and with vendors providing litigation support services, which increases the likelihood of cost effective, quality representational services. The primary focus of the assistance will be CJA panel attorneys, with Federal Defender Organization (FDO) staff as a secondary focus.

Defending a Federal Criminal Case - 2010 Edition - Available Now!

It is now available for purchase!

This three-volume, hard-bound edition was written by Federal Defenders, Assistant Federal Defenders, Criminal Justice Act Attorneys, and other experienced Federal Court practitioners from across the country.

It covers many of the traditional DFCC topics federal defense lawyers have come to rely on, from the Bail Reform Act to Prosecutorial Misconduct, from Jury Selection to Challenging Illegal Searches and Seizures. But this newest edition also has chapters on the hottest topics in federal defense, making it an essential text in any federal criminal defense lawyer's library.

I am pleased to announce the new Litigation Support page on the ODS-TB website at www.fd.org. It is our hope that it will be a resource for Defender staff and CJA panel attorneys when facing cases with large volumes of discovery and/or electronic discovery. The page can be found at http://www.fd.org/odstb_LitigationSupport.htm (if the link does not work, you can access it on the Litigation Support tab on the left side of the home page).

Lawyers have certain ethical obligations in maintaining closed client files. Clients are entitled to
most of the contents of a closed file. Lawyers should establish a file-retention policy and
communicate that policy to the client, in writing, at the commencement of the lawyer/client
relationship. If a lawyer does not have a file-retention policy, the lawyer will have additional
ethical obligations to fulfill prior to the destruction of any closed client file. OPINION NO. 08-02
(December 2008)

Attached is the FDO's Sentencing Resource Manual -- Using Studies and Statistics to Redefine the Purposes of Sentencing, updated as of September 2008. It contains several additions since our last update, of particular note in the areas Physical Condition, Immigration, and Recidivism.
It will be posted on fd.org in the next day or so. 9/2008

In the recently enacted Consolidated Appropriations Act of 2008, Congress authorized and provided funds to raise the non-capital and capital hourly panel attorney compensation rates. The new hourly compensation rates apply to work performed on or after January 1, 2008. Please see the attached for further information regarding implementing the rate increases.

Proposed Amendments for Public Comment - August 2007
The Judicial Conference Advisory Committees on the Appellate, Bankruptcy, Civil, and Criminal Rules have proposed amendments to federal rules and Official Forms and requested that the proposals be circulated to the bench, bar, and public for comment. The public comment period ends on February 15, 2008. Information

Attached is the latest letter we filed with the US Sentencing Commission related to its 2007-2008 priorities. The letter supplements our lengthier letter of July 9th, and is referenced in this one (I didn't attach it because of the size).

This letter is another solid effort by Amy Baron-Evans, Anne Blanchard, Sara Noonan, and Jennifer Coffin. Henry Bemporad, new FPD for the WD Texas, helped with the analysis. Thanks to all.

Attached is Judge Catherine Perry's ( E.D. Missouri) Order of July 26, 2007
dismissing an indictment charging failure to register in US v. Muzio. The
case was handled by AFPD Felicia Jones of our office. Judge Perry found,
contrary to Magistrate Adelman, that applying SORNA to a defendant whose
sex offense conviction predated the Act and who traveled interstate and
failed to register after the date of the Act (July 27, 2006) but before the
AG ruled the Act applied (February 28, 2007) violates the ex post facto
clause.

Change in bureau of prisons' policies for responding to sentencing Recommendations and for awarding prior custody credit for Juveniles. Link

Attached is a great letter from Tom Hillier on behalf of the Defenders that went to the Standing Committee today in support of the proposal to amend Rule 16 to require the government to disclose exculpatory evidence.5.15.07

Attached is a letter and memorandum from the Defenders, joined by NACDL, to the Standing Committee, opposing the set of victim rules recently approved by the Advisory Committee.

The Ninth Circuit Jury Instructions Committee, chaired by District Judge Anna Brown of the District of Oregon, has amended and added the following instructions in the 2003 edition of the Manual of Model Criminal Jury Instructions. An asterisk after an instruction title indicates a change to the comment to the instruction only:
Criminal Jury Instructions
1.13A Use of Interpreter in Court [New]
1.2 The Charge—Presumption of Innocence*
4.20 Flight/Concealment of Identity [New]
5.7 Deliberate Ignorance*
6.4 Insanity
6.5 Duress, Coercion or Compulsion (To Refute Element of Offense)
7.6 Communication with Court*
7.9. Specific Issue Unanimity*
8.59 Firearms—Ammunition—Unlawful Possession*
8.65 Firearms—Using or Carrying in Commission of Drug Trafficking Crime or Crime of Violence
8.101 Mail Fraud—Scheme to Obtain Money or Property by False Promises*
8.154 Sexual Exploitation of Child–Possession of Child Pornography*
9.1 Alien—Bringing into United States (Other Than Designated Place)*
9.1A Alien—Bringing into United States (For Commercial Advantage or Private Financial Gain
9.1B Alien—Bringing into United States (Without Immediate Presentation at Designated Port of Entry) [New]
9.5 Alien—Deported Alien Who Reenters United States Without Consent to Reapply for Admission
9.5A Alien—Reentry of Deported Alien—Attempt
9.5B Alien–Deported Alien Found in United States [New]
9.13 Controlled Substance—Possession with Intent to Distribute
9.13A Determining Amount of Controlled Substance [New]
9.23 Controlled Substance—Listed Chemical, Possession with Intent to Manufacture*
9.37 Filing False Tax Return*

Please note that hard copies on adhesive paper will NOT follow. Please print out the attachments below for the added and amended instructions and tuck or paste them into your manuals. In addition, please be sure to refer to the Ninth Circuit Office of the Circuit Executive website for the latest updates to the Manuals of Model Criminal and Civil Instructions. The direct link to the criminal jury instructions is: http://www.ce9.uscourts.gov/web/sdocuments.nsf/crimMarch 2007 Criminal Revisions

The outline covers federal search and seizure cases from a defense perspective. It sets out the general state of the law and, through counterpoints to the cases restricting Fourth Amendment rights, keeps track of cases in which defendants have succeeded in suppressing evidence based on creative use of facts and law. The outline provides a starting place for research, a repository for cases that frequently are useful, and an optimistic approach to Fourth Amendment issues. 10/2006

I thought you might like to know that the Criminal Rules Advisory Committee recently voted to approve a proposed amendment to Rule 16. Attached hereto is the Rule 16 proposal. As you will see this is a significant step forward for the criminal defense bar. Unfortunately, the Department of Justice vows to continue to fight this proposal at the next level of review, which is the Judiciary's Standing Committee.
Tom McNamara 9/12/2006

The BOP has rewritten its designation manual, effective today. It has a summary of changes at the beginning. I have not digested it yet, but will in the next several days. You can download the program statement at their website (www.bop.gov). Follow the prompts to find a policy, look in the 5000 series. It is in alphabetical order, named Security Designation and Custody Classification. Enjoy! 9/2006

To: All Federal Defenders and CJA Panel Attorney District Representatives

At its September 2005 session, the Judicial Conference established a pilot program for up to three circuit positions to support the case-budgeting process, to be funded from the Defender Services appropriation. These positions are intended to enhance management of, and accountability for, the CJA panel attorney cases most significantly affecting the Defender Services account (direct death prosecutions, capital habeas corpus cases, and non-capital "mega cases" expected to exceed $30,000). At its June 1-2, 2006 meeting, the Defender Services Committee selected the Second, Sixth, and Ninth Circuits to participate in the pilot.

Attached are the advertisements for the positions in the Second and Ninth Circuits (the ad for the Sixth Circuit will follow). Defenders are asked to post the advertisements in their office and forward them to staff, and defenders and panel attorney representatives are asked to forward the ads to other panel attorneys.

The Death Penalty Resource Counsel Oversight Committee of the Federal Public Defender system announces 1) that a position is available as a full-time Assistant Federal Defender, Capital Resource Counsel, and 2) the availability of additional contract hours (at $125.00 per hour) for additional part-time Federal Death Penalty Resource Counsel.

The Federal Death Penalty Resource Counsel Project originally employed, part-time in 1992, two attorneys, David Bruck (of South Carolina, now Virginia) and Kevin McNally (of Kentucky), added a third in 1997, Richard Burr (of Texas, now Oklahoma) and in 2002 a fourth, Michael Burt (of California). Additionally, in 2002, Judy Clarke (of California) and Isaiah “Skip” Gant (of Tennessee), were selected to be full-time Assistant Federal Defender Capital Resource Counsel. “Skip” Gant served until this year and continues as an Assistant Federal Defender in Nashville available to assist in death penalty cases.

Applicants for the second full-time Capital Resource Counsel position or for the new part-time contract hours as a Federal Death Penalty Resource Counsel should submit a cover letter and current resume, detailing death penalty defense experience, to James Wyda, Federal Public Defender for the District of Maryland, 100 S. Charles Street, Tower II, Suite 1100, Baltimore, Maryland 21201. Applications accepted until positions filled but interested parties should apply immediately. 8/2006CRC 2006 AnnouncementCRC 2006 DescriptionRCP 2006 AnnouncementRCP 2006 Description

All:

Attached is the US Sentencing Com'n's announcement of priorities for the 07 amendment cycle (ending in May 07). The Com'n sets forth the usual items (circuit conflicts, congressional directives, Booker) and some specific ones, including immigration, crack/cocaine (but not mandatories in general), and simplification (hmmmm). We will be prepared to respond and suggest, and hopefully be involved in the Com'n's working groups. A more detailed synopsis will follow.

We hope to expand and revise the Guideline Committee. There are a great many skilled and dedicated AFPDs out there, and we're working with your recommendations. Our Sentencing resource Counsels (SRC) are gearing up, and we are recruiting for two additional R&W positions to help.

The template for our suggestions can be found in our letter sent to the Com'n, where were expressed our disappointment in their policies and procedures. We will continue to decry the senseless ratcheting up and the abject subservience to DOJ.
JonAnnouncement of priorities

Here is the new sex bill from the House that is on a fast-track. The Senate has already passed one. This one has such noticeable features as a federals ex registry, new offenses for failure to register, abolishing statute of limitations for sex offenses, mandatory minimums for sex offenses (one I heard was 30 years for agg sex abuse with a minor), and nondisclosure to defense counsel of evidence of child pornography so long as reasonable access is available. Child Protection and Safety Act 7.27.2006

Please note that hard copies on adhesive paper will NOT follow. Please print out the attachment below for the revised instructions and tuck or paste it into your Manual. In addition, please be sure to refer to the “publications” section of the Ninth Circuit Website at http://156.128.26.151/templates/jurydocs.asp for the latest updates to the Manuals of Model Criminal and Civil Instructions. The committee will continue to make changes online to instructions and comments as appropriate. If you have any questions concerning the instructions, please contact dlandis@ce9.uscourts.gov.Revised criminal jury instructions April06.pdf

Hello: As you should all know by now, Jose Padilla had to resign from his role as CJA Panel Representative as well as from the CJA Panel itself because he is now a member of the Bench in Superior Court, Maricopa County. In light of this change in Jose's circumstances, Vince Lacsamana of Tucson has moved from being the secondary Panel Representative to becoming the primary Panel Representative. That said, we now have an opening for a new secondary Panel Representative who will serve in this capacity for the next two years or so until the end of Vince's term. At that time, the secondary Panel Representative will assume the primary role, barring resignation or other change in circumstances.

Accordingly, we are urging everyone to read the attached description of what a Panel Representative's position entails and to contact either Deborah Euler-Aiayi or myself at 602-382-2700 to advise us of your desire to undertake this role and these responsibilities. A personal interview will then be scheduled at a mutually convenient time to further discuss your interest. Thank you. GregROLE OF A CJA PANEL REPRESENTATIVE 4-6-06